1. If an alleged probation violator is incarcerated as the result of a new felony conviction
arising in another county, the State does not waive a probation violation if it lodges a
detainer but does not execute a probation violation warrant while the alleged violator is
imprisoned on a consecutive sentence.

2. If an alleged probation violator is incarcerated as the result of a new felony conviction
arising in another county, due process does not automatically demand that a probation
violation warrant be executed before an alleged violator is released from that custody. But
an earlier resolution may be necessary if the alleged violator can show an infringement of a
liberty interest.

3. Under the circumstances of this case, an alleged probation violator did not establish an
infringement of a liberty interest as the result of a delay in executing a probation violation
warrant until after the alleged violator had served a consecutive sentence arising from an
unrelated felony conviction.

Review of the judgment of the Court of Appeals in 38 Kan. App. 2d 465, 167 P.3d 382
(2007). Appeal
from McPherson district court; CARL B. ANDERSON, JR., judge. Judgment of the Court of
Appeals reversing the
district court is reversed. Judgment of the district court is affirmed. Opinion filed October 31,
2008.

Rachel L. Pickering, of Kansas Appellate Defender Office, argued the cause,
and Jay Witt, of the same
office, was with her on the briefs for appellant.

Ty Kaufman, county attorney, argued the cause, and Paul J.
Morrison, attorney general, was with him on
the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: This appeal raises the issue of whether a 6-year delay between issuance
and execution of a probation revocation warrant was unreasonable, constituting a denial of due
process that deprived the district court of jurisdiction over a probation violator who was
imprisoned on unrelated charges. To resolve this issue, we must determine two questions of first
impression in Kansas: (1) Does the State waive a probation violation if it lodges a detainer but
does not conduct a probation revocation hearing while the probationer is imprisoned on an
unrelated felony conviction arising in another county and (2) if not, what standard applies for
determining if an alleged probation violator's due process has been violated because of the delay?

These issues arose when Eric Eugene Hall was served with a probation revocation warrant
6 years after the warrant was issued in a McPherson County case. The warrant was served
immediately upon Hall's release from prison on an unrelated felony conviction arising in Saline
County. The Saline County conviction served as the basis for an allegation that Hall had failed to
remain law abiding in violation of the terms of his McPherson County probation.

The probation revocation warrant was issued within weeks of Hall's conviction in Saline
County. At that point he had served less than 1 year of his 3-year probation in the McPherson
County case.

The State made no effort to execute the warrant. Instead, it apparently lodged a detainer
with prison officials who had custody of Hall under the authority of the Saline County sentence,
which had been ordered to run consecutive to the McPherson County conviction. We use the
word "apparently" because there is no direct evidence establishing this fact in the record on
appeal. Perhaps in an attempt to remedy this omission, the State added an appendix to its brief,
which included an affidavit establishing that the detainer had been lodged shortly after the warrant
issued. We cannot consider the affidavit, however, because it is not included in the record on
appeal. See Supreme Court Rule 6.02(f) (2007 Kan. Ct. R. Annot. 37) (allowing appendix to
appellant's brief to include "limited extracts from the record on appeal"; appendix is "not to be
considered as a substitute for the record itself"); Supreme Court Rule 6.03(e) (2007 Kan. Ct. R.
Annot. 40) (allowing appendix to appellee's brief and incorporating requirements and restrictions
of Rule 6.02[f]).

Nevertheless, we accept that the detainer was lodged against Hall because the parties do
not dispute its existence, and the record contains several indirect references to the detainer and its
effect. Most significantly, the record contains copies of two letters from Hall to the district judge
in which Hall referred to the detainer and requested resolution of the pending revocation motion.
The first letter was dated February 10, 2002, and indicated that the unresolved detainer from
McPherson County rendered Hall ineligible for reintegration and work release programs. Because
he was ineligible for these programs, Hall requested the appointment of counsel and a hearing.
Apparently Hall did not receive a response because he wrote again on July 6, 2004, seeking
resolution of the pending detainer and probation revocation motion.

Following the first letter, the State drafted an order to transport Hall to McPherson
County. The order was executed by the district court and filed on March 27, 2002, but the record
is silent regarding what became of this order. All we know is that there was no action until Hall
was released from prison on July 18, 2005, after having served his sentence in the Saline County
case. Hall was immediately taken into custody on the McPherson County warrant and transported
to McPherson County. Counsel was appointed, and a hearing was promptly conducted.

At the hearing, Hall did not contest the fact that he had violated conditions of release.
Nevertheless, relying on State v. Grimsley, 15 Kan. App. 2d 441, 808 P.2d 1387
(1991), he
moved for dismissal on the basis that the district court lacked jurisdiction due to the State's delay
in prosecuting the motion; Hall argued the delay violated the Due Process Clause of the
Fourteenth Amendment to the United States Constitution.

The district court rejected Hall's contention and stated:

"[T]he issue becomes one of whether or not the State is obligated to bring the defendant
back
while he is in prison to do the motion to revoke probation. I have not yet seen a case that speaks
to that issue when it's in court. However, I agree with the State that the issues normally raised on
failure to grant a speedy trial, so forth, or a detainer claim filed by a defendant is not applicable
because it doesn't go to the issue of sentencing or speedy trial or any of those issues. They've
already been sentenced. I've always proceeded under the assumption the State does not have that
duty that they can simply wait until they're discharged, although I think the better practice is to
bring them back, but that's not my call. Until the Supreme Court tells me they have to bring them
back when they're in prison I don't feel it has application."

The district court revoked Hall's probation and ordered him to serve the original prison
sentence.

On direct appeal, the Court of Appeals reversed the district court and remanded with
instructions to discharge Hall. State v. Hall, 38 Kan. App. 2d 465, 167 P.3d 382
(2007). The
panel held that the State failed to timely execute the bench warrant against Hall. Relying on
State
v. Haines, 30 Kan. App. 2d 110, 39 P.3d 95, rev. denied 273 Kan. 1038
(2002), the panel
concluded the State waived the probation violation, meaning Hall need not prove actual prejudice
caused by the delay. 38 Kan. App. 2d at 469.

The panel recognized the unique issue in this case–i.e., the delay being
explained by the
defendant's imprisonment–but concluded that was not a sufficient basis to deviate from the
Haines
waiver doctrine. In the panel's view, six factors in the record on appeal supported its conclusion:
(1) the State's inability to explain the delay; (2) the fact that Hall could have been transported to
McPherson County for revocation proceedings during his imprisonment on the Saline County
convictions; (3) Hall's unanswered correspondence requesting timely resolution of the revocation
motion; (4) the State's failure to comply with the district court's order to transport Hall back to
McPherson County to resolve the revocation matter; (5) the unresolved detainer's potential
prejudice to Hall and its impact on program eligibility during his imprisonment; and (6) the
emotional anxiety of waiting 6 years to learn of the outcome of the revocation motion. 38 Kan.
App. 2d at 471.

The State filed a petition for review, arguing the waiver doctrine should not apply and that
Hall had failed to establish a due process violation. To support its arguments, the State cited
additional authority, including a United States Supreme Court case that addressed whether due
process requires execution of a parole or probation violation warrant when the defendant is
imprisoned on an intervening sentence. We granted review. See K.S.A. 60-2101(b); K.S.A.
20-3018(b).

The questions raised in this appeal are governed by the overarching concern of assuring
compliance with the Due Process Clause of the Fourteenth Amendment to the United States
Constitution. The Due Process Clause imposes procedural and substantive due process
requirements whenever the State deprives someone of liberty, such as through the revocation of
an individual's probation. State v. Walker, 260 Kan. 803, 808-09, 926 P.2d 218
(1996). Among
the demands of due process are the requirements that a court have jurisdiction before depriving
someone of liberty and, when revoking probation, that the court comply with the minimum
procedural safeguards outlined in Gagnon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d
656, 93 S. Ct.
1756 (1973), and Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct.
2593 (1972).
260 Kan. at 809.

An appellate court considering whether a district court complied with these due process
requirements applies an unlimited standard of review. This conclusion results from the overlay of
several considerations that are a part of our analysis. First, the question of whether a court has
jurisdiction is a question of law. State v. Johnson, 283 Kan. 649, 652, 156 P.3d 596
(2007); State
v. Rocha, 30 Kan. App. 2d 817, 819, 48 P.3d 683 (2002). Second, the question of whether
there
has been a violation of constitutional due process rights also raises a question of law. State
v.
Holt, 285 Kan. 760, 774, 175 P.3d 239 (2008). Finally, a court's subject matter jurisdiction
is
defined by statute, and the interpretation of a statute is a question of law subject to unlimited
review. State v. Woolverton, 284 Kan. 59, 67, 159 P.3d 985 (2007).

In reviewing an allegation that due process was violated because the district court did not
have jurisdiction, the first concern is whether a district court has subject matter jurisdiction.
Jurisdiction to revoke probation is governed by K.S.A. 22-3716(a), which provides that "[a]t any
time during probation, . . . the court may issue a warrant for the arrest of a defendant for violation
of any of the conditions of release or assignment." As the Court of Appeals stated in
Rocha, a
"reasonable construction" of K.S.A. 22-3716(a) is that "revocation of probation may properly
occur after the term of probation has expired if a warrant, petition, or show cause order has been
filed prior to expiration of the probation term." 30 Kan. App. 2d at 820. Hall does not dispute that
the warrant was issued during the term of his probation.

Subsection (b) of the same statute provides that "upon an arrest by warrant . . . the court
shall cause the defendant to be brought before it without unnecessary delay for a hearing on the
violation charged." Again, Hall does not dispute compliance with this provision; once he was
arrested on the probation violation warrant he was immediately transported to McPherson County
and a hearing was promptly held.

Nevertheless, even if the State has complied with K.S.A. 22-3716, a district court may be
deprived of jurisdiction if an alleged probation violator is denied due process. See 30 Kan. App.
2d at 820. Due process demands that "the proceedings were instituted during the term of the
probation and the revocation occurs within a reasonable time thereafter. [Citation omitted.]"
Haines, 30 Kan. App. 2d at 112; see also State v. Myers, 39 Kan. App. 2d 250,
178 P.3d 74
(2008). In other words, the issuance of an arrest warrant does not extend a court's jurisdiction
over a probationer indefinitely, and due process demands that the State act without unreasonable
delay in the issuance and execution of an arrest warrant. 30 Kan. App. 2d at 112.

These decisions of our Court of Appeals are consistent with the general rule followed by
other courts. See, e.g., United States v. Berry, 814 F.2d 1406, 1410 (9th
Cir. 1987); United
States v. Hill, 719 F.2d 1402, 1405 (9th Cir. 1983); United States v. Strada,
503 F.2d 1081, 1084
(8th Cir. 1974). The general rule derives from the United States Supreme Court's decisions in
Morrissey, 408 U.S. 471, and Gagnon, 411 U.S. 778. In the first of those
decisions, the Court
defined the due process standards that apply in a parole revocation hearing and held that a
"revocation hearing must be tendered within a reasonable time after the parolee is taken into
custody." 408 U.S. at 488. Then, in Gagnon, 411 U.S. at 782, the Court held that the
Morrissey
v. Brewer due process requirements applied to probation revocation hearings as well.
Although
the Court acknowledged "minor differences" between probation and parole, it held there is no
"difference relevant to the guarantee of due process between the revocation of parole and the
revocation of probation." 411 U.S. at 782. Thus, because of the loss of liberty entailed, a person
whose probation is subject to revocation–like the parolee whose parole is subject to
revocation–is
protected by due process rights and is entitled to a prompt revocation hearing after being arrested.

Although these decisions did not address whether due process required the timely
execution of a warrant, "a long line of cases" has extended the reasoning of the decisions to mean
that a delay between issuance and execution of an arrest warrant may be unreasonable,
constituting a denial of due process that may deprive a court of jurisdiction over a probation
violator. 2 Cohen, The Law of Probation and Parole § 24:24, p. 24-37 (2d ed. 1999); see,
e.g.,
United States v. Gernie, 228 F. Supp. 329, 338-39 (S.D.N.Y. 1964) (delay of over 11
years in
service of warrant for violation of probation was unreasonable where probationer could have
readily been located and apprehended at any time by exercise of reasonable diligence);
Barker v.
State, 479 N.W.2d 275 (Iowa 1991) (recognizing long delay might constitute due process
violation).

In this action, neither party disputes these underlying principles. Rather, the State focuses
upon the Court of Appeals analysis that the delay was unreasonable, causing a due process
violation. Past Kansas cases, including the Court of Appeals decision in this case, measured the
reasonableness of the delay by determining whether "prejudice to the defendant is shown by the
delay, or there is an indication that the violation has been waived by the government." State
v.
Wonders, 27 Kan. App. 2d 588, Syl. ¶ 5, 8 P.3d 8, rev. denied 269 Kan.
940 (2000). If the State
waived the violation, the probationer does not have to establish prejudice. Haines, 30
Kan. App.
2d at 113; Wonders, 27 Kan. App. 2d at 592. The determination of whether inaction
constitutes
an "unnecessary delay depends upon the circumstances of each case." Toman v.
State, 213 Kan.
857, 860, 518 P.2d 501 (1974) (discussing delay between arrest and hearing).

Waiver

In holding that the State had waived the probation violation by delaying execution of the
warrant, the Court of Appeals relied upon Haines, in which it was held that the State
waived the
prosecution of the probation violation when a hearing was not conducted until 16 years after a
warrant was issued for a probation violation, a delay the panel considered unreasonable. In
Haines, the probationer was not incarcerated; rather, he was working as a truck
driver in Ohio.
The only attempt the State made to find Haines was to send letters, one to his ex-wife and another
to his mother. The letter to his mother was returned because of an insufficient address. The panel
concluded the State's effort was insufficient and, as a result, the district court lacked jurisdiction
because "an unreasonable delay by the State in the issuance and execution of a warrant for the
arrest of a probationer whose whereabouts are either known or ascertainable with reasonable
diligence may result in the State's waiver of the violation." 30 Kan. App. 2d at 112-13.

Similarly in other Kansas cases, the doctrine has been applied when the probationer was
not incarcerated and the State had information that would have allowed execution of the warrant
if reasonable diligence had been exercised. E.g., State v. Myers, 39 Kan.
App. 2d 250 (nearly
complete absence of evidence as to efforts actually made by State to attempt service on
probationer or to investigate his whereabouts); State v. Bennett, 36 Kan. App. 2d
381, 138 P.3d
1284, rev. denied 282 Kan. 792 (2006) (police had three possible addresses but made
no attempt
to serve for 2 years).

The State argues there is no comparison between these circumstances and the present
case. Here, the State knew of Hall's location and there was nothing to investigate. Furthermore,
the State took action by lodging a detainer with prison officials. Under those circumstances,
according to the State, the waiver doctrine does not apply because it acted with the level of
diligence required when a defendant is imprisoned on a consecutive sentence arising from
unrelated charges.

Defendant's Imprisonment

In support of its argument, the State cites State v. Nicholson, 243 Kan. 747,
763 P.2d 616
(1988), a case which the Court of Appeals found distinguishable. In Nicholson, the
defendant
sought dismissal of criminal charges, claiming the statute of limitations barred the prosecution
because there was an unreasonable delay in executing the warrant that had not been served for
over 2 years. During that 2-year period, Nicholson was in the custody of the Kansas State
Industrial Reformatory (KSIR). Within 3 months of issuing the warrant, the State notified KSIR
of the existence of a warrant and requested that a detainer be placed on Nicholson. Shortly after
KSIR received the detainer request, it notified Nicholson of the detainer. During Nicholson's term
of imprisonment at KSIR, he made no attempt to assert his right to dispose of the detainer
pursuant to the Uniform Mandatory Disposition of Detainers Act, K.S.A. 22-4301 et
seq. 243
Kan. at 748-49.

The Nicholson court described the narrow issue on appeal as "whether, under
the facts of
this case, the failure to execute the arrest warrant while appellee was incarcerated at the KSIR
constitutes unreasonable delay." 243 Kan. at 748. Noting that the statutory definition for arrest is
"the taking of a person into custody," the Nicholson court held the State was not
expected to
execute the criminal arrest warrant by arresting the defendant when he was already in custody.
243 Kan. at 749-50; see K.S.A. 22-2202(4) (defining "arrest"); see also State v.
Clark, 222 Kan.
65, 67, 563 P.2d 1028 (1977) ("A detainer is a hold order or informal demand by one exercising
public authority for the possession of a person already in lawful custody.").

The Nicholson court further emphasized the generally recognized principle
that "a person
already in custody cannot be arrested on an outstanding warrant from another county or
jurisdiction." 243 Kan. at 750 (citing Hayes v. United States, 367 F.2d 216, 221 [10th
Cir. 1966];
State v. Bowman, 106 Kan. 430, 435-36, 188 P. 242 [1920]; 6A C.J.S., Arrest
§ 5). For these
reasons, the court held there was no unreasonable delay in executing the warrant. 243 Kan. at
750-51. The court stated:

"In this case, the delay in complying with the statutory requirements for execution
of an
arrest warrant was not 'unreasonable' because it was impractical, if not impossible, to arrest the
defendant as long as he was already in custody. While it may have been possible for the Barton
County Sheriff to secure the release of the appellee from the custody of the secretary of
corrections for purposes of executing the warrant and taking appellee before the magistrate in
Barton County, he was under no obligation to do so." 243 Kan. at 750.

Here, the Court of Appeals panel noted several distinctions between
Nicholson and this
case. First, the panel stated that "[d]etermining whether delay in executing an arrest warrant
should toll the applicable statute of limitations requires a different analysis from determining
whether there has been a due process deprivation in the case of prosecution delay in revoking
probation." 38 Kan. App. 2d at 470. Next, the panel observed that Nicholson had the right to
dispose of his detainer through the Uniform Mandatory Disposition of Detainers Act but made no
attempt to do so; whereas, according to the Court of Appeals, the "Act has no application" to this
case. 38 Kan. App. 2d at 470; see, e.g., State v. Julian, 244 Kan. 101,
105, 765 P.2d 1104 (1988)
(one who has been released from custody by parole, probation, or otherwise may not rely upon
speedy trial provisions of Uniform Mandatory Disposition of Detainers Act); Robison v.
State,
278 N.W.2d 463 (S.D. 1979) (the Interstate Agreement on Detainers Act [S.D. Codified Laws
Ann. § 23-24A] not applicable to detainers lodged for parole violations).

Another distinguishing factor found by the Court of Appeals panel was that
Nicholson
involved the construction of statutes having no application or relevance to this case. Also,
although it is impossible to arrest a person already in "custody," the panel stated that "it is quite
possible to transport someone in custody to another county to answer charges there." 38 Kan.
App. 2d at 470. The final distinguishing factor found by the Court of Appeals was that "the State
has offered no explanation or excuse whatsoever for the noncompliance with the district court's
order to transport Hall to McPherson County." 38 Kan. App. 2d at 470.

Rejecting Nicholson, the Court of Appeals examined cases from other
jurisdictions. It
noted federal authorities were split, but two out-of-state cases, which had been cited in
Haines,
supported the view that the State waived a violation if it did not serve a revocation warrant even
if the probationer was in prison on other charges. The panel decided to "embrace the rationale of
those cases that formed the conceptual underpinning" for the Haines decision. 38
Kan. App. 2d at
470-71. The two decisions cited in Haines are People v. Diamond, 59
Mich. App. 581, 229
N.W.2d 857 (1975), and State v. Murray, 81 N.M. 445, 468 P.2d 416 (1970).

In the earliest of these two cases, Murray, the court did not explain the
rationale of its
decision in depth, but did state that the waiver rule was based upon due process. 81 N.M. at 449.

In the later of the cases, Diamond, the court looked to several federal cases
discussing
due process considerations in probation revocation proceedings. The Michigan court observed
there were several questions those authorities did not answer. Regarding the question of whether
due process required the prompt execution of the warrant, the court noted the holdings in
Morrissey, 408 U.S. 471, and Gagnon, 411 U.S. 778, but concluded:
"These cases however, do
not address whether a warrant issued for a probation violation must be executed within a
reasonable time before the defendant is imprisoned." 59 Mich. App. 2d at 587 n.4. Following
other courts, the Michigan court determined it would require reasonable diligence in the execution
of the warrant. Then, the court addressed the specific issue in this case, the impact of a
probationer's incarceration on the waiver rule. In doing so, the court noted: "We are cognizant of
the split of authority as to whether authorities must execute a warrant while the defendant is
incarcerated or whether they may wait until defendant is released, and then execute the warrant.
Fitzgerald v. Sigler, 372 F. Supp. 889 (D.D.C. 1974); Cook v. United States
Attorney General,
488 F.2d 667 (CA5, 1974)." 59 Mich. App. 2d at 585 n.2. The Michigan court held the warrant
must be executed even though the defendant was in prison.

Moody

One year later, in Moody v. Daggett, 429 U.S. 78, 50 L. Ed. 2d 236, 97 S.
Ct. 274 (1976),
the Supreme Court also considered the split in decisions regarding whether authorities must
execute a revocation warrant while the defendant is incarcerated or whether they may wait until
the defendant is released. 429 U.S. at 79 n.1. In our case, the State did not cite
Moody in its brief
before the Court of Appeals, but the district court discussed and relied upon the decision in
making its ruling.

In Moody, a federal prisoner was released on parole with almost 6 years
remaining to be
served on his conviction for a federal rape offense. While on parole, Moody was arrested,
convicted, and sentenced for two federal homicide offenses. Soon after his incarceration for the
homicides, federal parole authorities issued but did not execute a parole violator warrant relating
to the pending rape sentence. The warrant was filed as a detainer at the federal prison.

Moody, citing Morrissey, relied upon the requirement that parole revocation
hearings be
held promptly after arrest to argue that detainers must be executed and revocation hearings
convened without substantial delay. Moody's request for a prompt hearing was denied, and the
parole authorities indicated they would not provide a hearing until the warrant was executed at
the completion of the homicide sentences. Approximately 4 years later, while still in custody for
the homicides and with the parole violator warrant/detainer still unexecuted, Moody sought
habeas relief in federal court. He claimed that the State's delay violated his due process rights and
that the State deprived him of a protected liberty interest because the delay potentially increased
the length of his incarceration in that he lost the opportunity to serve concurrent sentences.

The Supreme Court rejected his argument because Moody was not in custody on the
warrant. The Court explained "the loss of liberty as a parole violator does not occur until the
parolee is taken into custody under the warrant." (Emphasis added.) 429 U.S. at 87.
Moody's loss
of liberty before the execution of the warrant, according to the Court, was not due to the alleged
violation of parole, but from his conviction for additional crimes while on parole. The Supreme
Court held Moody "has been deprived of no constitutionally protected rights simply by issuance
of a parole violator warrant. [There is] no constitutional duty to provide . . . an adversary parole
hearing until [Moody] is taken into custody as a parole violator by execution of the warrant." 429
U.S. at 89; see State v. Duke, 10 Kan. App. 2d 392, 393, 699 P.2d 576 (1985)
(K.S.A. 1984
Supp. 22-3716, requiring defendant to be brought before court without unnecessary delay
after
being arrested on warrant issued for probation violation, complied with constitutional
requirements).

Some courts have viewed the holding in Moody as meaning there cannot be a
constitutional violation if a parole or probation revocation warrant remains unexecuted while the
alleged violator is in prison. See, e.g., State ex rel. v. Parole Auth., 66
Ohio St. 3d 121, 609
N.E.2d 546 (1993) (no due process liberty interest attaches until parolee is taken into custody via
detainer; if loss of liberty is due to detention for new crimes, parole authority has no constitutional
duty to hold prompt revocation hearing, even if requested by defendant); Bush v.
Canary, 286
N.W.2d 536, 538 (S.D. 1979) (failure to give parolee a revocation hearing immediately after
issuance of warrant of detainer did not violate due process since unexecuted warrant had no
bearing on loss of liberty; incarceration was brought about solely because of another conviction).

Most courts, however, have concluded such a sweeping holding is not justified because
Moody did not foreclose the possibility that a defendant could establish a liberty
interest in a
prompt hearing. For example, the Court carefully noted that Moody had not proven a loss of
evidence because of the delay. 429 U.S. at 88 n.9. The narrow ruling seemed to leave open the
possibility that had Moody established prejudice he would have succeeded on his due process
claim. See, e.g., Harris v. Day, 649 F.2d 755, 761-62 (10th Cir. 1981) (explaining in
a habeas
proceeding, "[t]his court has required a showing of prejudice where there has been a delay in
holding a parolee's parole revocation hearing after execution of a parole warrant"). As one
commentator noted, "[I]f the alleged violator is incarcerated as the result of a new charge, in most
cases Moody permits the warrant to be executed upon release from that custody. But
an earlier
resolution may be necessary if the alleged violator can show an infringement of a liberty interest."
2 Cohen, § 24:11, p. 24-18.

We agree with this reading of Moody in large part because the Supreme Court
did not end
its analysis with the conclusion that Moody had not been arrested on the revocation warrant.
Instead, the Court considered various potential liberty interests raised by Moody and concluded
he was not able to meet the burden of establishing a constitutionally recognized interest.

First, the Court rejected Moody's suggestion that he was being deprived of the
opportunity to serve his sentences concurrently. The court concluded Moody did not have a right
to a concurrent sentence but merely a hope. In fact, it was uncertain whether Moody would even
be incarcerated if a revocation eventually occurred. Therefore, the eventual possibility that he
would receive a concurrent sentence was too uncertain to constitute a liberty interest. 429 U.S. at
87-88.

Second, the Court concluded a liberty interest did not arise because of possible adverse
impact on a prisoner's classification or eligibility for various rehabilitation programs. The Court
reasoned that prison officials have full discretion to control conditions of confinement and Moody
had "no legitimate statutory or constitutional entitlement sufficient to invoke due process." 429
U.S. at 88 n.9; see Meachum v. Fano, 427 U.S. 215, 49 L. Ed. 2d 451, 96 S. Ct.
2532, reh.
denied 429 U.S. 873 (1976).

Third, the Court rejected the adverse impact upon a possible early release/parole date as a
liberty interest. The Court concluded that a later hearing would provide Moody with the "same
full opportunity to persuade the Commission that he should be released from federal custody as
would an immediate hearing on the parole violator warrant." 429 U.S. at 88.

In addition, the Court listed several practical considerations supporting its reasoning that a
hearing need not be conducted until the parole violator is taken into custody. Principally, the
Court pointed out that information regarding a defendant's behavior while imprisoned will be
highly relevant to a determination of whether to revoke parole. Additionally, the Court suggested
a defendant may actually benefit from the delay because authorities would be inclined to require
consecutive sentences if the decision were made immediately after a new conviction. Yet, if one
sentence had been served before the decision was made, authorities might be inclined to determine
that the defendant had been adequately punished for all of the misconduct. 429 U.S. at 84, 89.

Reasonable Diligence Post-Moody

Although the Court in Moody noted the split of authority regarding whether it
was
reasonable to delay execution of a revocation warrant when the probationer or parolee was
incarcerated on an intervening conviction, it did not resolve the split in explicit terms. Yet, its
holding–i.e., that due process does not require that violation warrants be
executed while the
alleged violator is incarcerated on other charges–is consistent with the line of previous
cases
which had held that "while a revocation warrant must be executed within a reasonable time
[citation omitted], incarceration in a state institution has been held to be a good reason for delay
in execution of the warrant." Small v. Britton, 500 F.2d 299, 301 (10th Cir. 1974);
see, e.g.,
Taylor v. Simpson, 292, F.2d 698 (10th Cir. 1961); Thomas v. United States
Board of Parole,
354 F. Supp. 273 (D. Kan. 1973); Rossello v. United States Board of Parole, 261 F.
Supp. 308
(M.D. Pa. 1966); 2 Cohen, § 24:24, p. 24-38. Moody had been sentenced to prison for 10
years
for the crimes committed while on parole. Thus, the Court approved a possible delay in executing
the warrant that was longer than the 6-year delay involved in this case. On the other hand, the
holding in Moody is inconsistent with the line of cases followed in
Diamond, Murray, and the
Court of Appeals decision in this case, which held that the State violated due process by not
serving the warrant while the alleged violator was incarcerated.

Consequently, consistent with Moody, we hold that if an alleged probation
violator is
incarcerated as the result of a new felony conviction arising in another county, the State does not
waive a probation violation if it lodges a detainer but does not execute a probation violation
warrant while the alleged violator is imprisoned on a consecutive sentence. See
Nicholson, 243
Kan. at 749 (it is impractical, if not impossible, to arrest a defendant who is already in custody; no
obligation to seek temporary release from custody for purpose of executing warrant).

Hall's Asserted Liberty Interests

Yet, as we have discussed, even though due process does not demand that a probation
violation warrant be executed before an alleged violator is released from custody after having
served the sentence for an unrelated felony conviction, an earlier resolution may be necessary if
the alleged violator can show an infringement of a liberty interest.

This raises the question of the possible remaining constitutional limits. In this context,
post-Moody, courts have adopted various approaches to determine if a delay in
executing a
violation warrant violates due process. See 2 Cohen, §§ 24:22 to 24:24. One
approach is the one
traditionally used in Kansas–a showing that prejudice has resulted from the delay. See 2
Cohen, §
24:23; see also State v. Wonders, 27 Kan. App. 2d 588, Syl. ¶ 5, 8 P.3d 8,
rev. denied 269 Kan.
940 (2000) (no "due process violation unless prejudice to the defendant is shown by the delay, or
there is an indication that the violation has been waived by the government"). While the other
approaches include other factors, prejudice caused by the delay is always an important factor. 2
Cohen, §§ 22:22 to 24:24. We see no persuasive reason to create a different test for
this
circumstance than the prejudice test Kansas courts have utilized in other contexts.

Therefore, we examine whether Hall was prejudiced by the delay. In this regard, Hall and
the Court of Appeals raised several considerations.

Hall raised an argument of potential prejudice in his letters to the district court when he
complained the detainer prevented him from participating in rehabilitation programs in prison. The
Supreme Court rejected this basis in Moody, 429 U.S. at 88-89 n.9, and Hall has not
established
why a different result should be reached under Kansas law. As with the federal procedure, Kansas
corrections officials have discretion in determining what programs will be available and who will
qualify for those programs. As such, a liberty interest does not arise. See Schuyler v.
Roberts, 285
Kan. 677, 175 P.3d 259 (2008).

The Court of Appeals found potential prejudice because of the "emotional anxiety"
attached to waiting to learn of the outcome of the revocation motion. We disagree with the Court
of Appeals' conclusion that this created a right to due process. "A defendant incarcerated for a
reason other than the delay in the hearings cannot properly attribute his anxiety at being
incarcerated–or the prejudice it implies–to the hearing delays." State v.
Benjamin, 929 A.2d 1276,
1283 (Vt. 2007). Moreover, under the circumstances of this case, Hall knew he had violated his
probation because he was convicted of crimes committed while he was on probation, and he knew
the Saline County sentence was consecutive to the McPherson County sentence.

Also, there has been a suggestion that Hall might receive a concurrent sentence and the
delay would eliminate the possibility. This suggestion has no merit because it was not possible for
Hall to receive a concurrent sentence. First, the sentence in Saline County was ordered by that
judge to run consecutively. The judge hearing the McPherson County revocation motion did not
have jurisdiction to modify that sentence. Furthermore, because Hall committed the Saline County
crimes while on probation in McPherson County, a consecutive sentence is mandatory:

"Any person who is convicted and sentenced for a crime committed while on probation,
assigned
to a community correctional services program, on parole, on conditional release or on postrelease
supervision for a felony shall serve the sentence consecutively to the term or terms
under which
the person was on probation, assigned to a community correctional services program or on parole
or conditional release." (Emphasis added.) K.S.A. 21-4608(c).

Thus, it was well established that Hall could not serve concurrent sentences.

A final consideration is one raised in Moody, i.e., the possibility
the delay would impair the
ability to present evidence. Even though Hall admits his violation, the prejudice may arise if there
is an actual loss of evidence regarding mitigating circumstances that would be presented to
influence the court regarding disposition. See United States v. Williams, 558 F.2d
224, 227 (5th
Cir. 1977) ("[I]n revocation cases, even if the prisoner admits the violation, he may be prejudiced
if delay has impaired his ability to present evidence of mitigating circumstances that might affect
the decision to incarcerate him and the conditions of incarceration."); Parham v. Warden,
172
Conn. 126, 134, 374 A.2d 137 (1976) ("To establish that a delay has produced a denial of due
process, the person arrested must show that actual significant prejudice to him has resulted.").
Again, Hall failed to show or even argue that he has suffered actual prejudice in his ability to offer
a defense. See, e.g., Harris v. Day, 649 F.2d 755, 761-62 (10th Cir.
1981) (holding that, absent
showing of prejudice, delay in holding revocation hearing on parole revocation warrant does not
violate parolee's due process rights). Therefore, this approach to due process affords Hall no
relief.

Hall offers no other potential liberty interest. Therefore, under the circumstances of this
case, Hall has failed to establish prejudice or otherwise establish that a liberty interest was
infringed. Consequently, the district court correctly determined that the State did not have to
execute the warrant and immediately conduct a hearing on the motion to revoke probation. The
district court had jurisdiction to revoke Hall's probation.

The decision of the Court of Appeals is reversed, and the district court's revocation of
Hall's probation is affirmed.